Commonwealth v. Webb

Dissenting Opinion by

Ceecone, J.:

I completely agree with Judge Jacobs’ opinion in that the court erred in admitting the testimony of the former assistant district attorney that appellant had not raised an insanity defense at his earlier trial for rape.1 I disagree, however, with Judge Jacobs’ assertion that the issue has not been preserved for appeal.

Admittedly, appellant lodged a timely objection at trial to the proffered testimony of Mr. Klein; and, after *138the jury returned its verdict of guilty of prison breach, appellant noted that he wished to file post-trial motions. The court postponed sentencing pending a hearing on the post-trial motions and the preparation of a pre-sentence investigation report. On January 25, 1974, appellant filed standard post-trial motions alleging that the verdict was against the evidence; the verdict was against the weight of the evidence; and the verdict was contrary to law. In addition, appellant also requested permission to be allowed “to file additional reasons in support of this motion as shall appear after the transcription of the Notes of Testimony.” On May 2,1974 the post-trial motions were denied and appellant was sentenced to three years of medical probation to run consecutively to sentences he was then serving.

While it is true that no additional reasons for a new trial were filed in writing, this court is not barred from considering orally argued post-trial motions so long as the proceedings took place prior to Commonwealth v. Blair, 460 Pa. 31, 33, 331 A.2d 213, 214 at n. 1 (1975),2 which came down subsequent to the judgment of sentence herein appealed. Although the record does not indicate what additional reasons were raised orally, I thing it improper for us to speculate in favor of a waiver when it is equally likely that the question of the propriety of Mr. Klein’s testimony was in fact raised below. In its brief the Commonwealth has not suggested that appellant waived his right to challenge the propriety of Mr. Klein’s testimony and has, in addition, briefed the merits of that question.3 I conclude, therefore, that we must reach the *139merits of the question now, rather than postpone our decision until appellant files a PCHA petition challenging the adequacy of his counsel. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272, 274-75 (1974) (Dissenting Opinion of Justice Pomeroy) .

Upon reaching the merits of the instant appeal, I would reverse and remand for a new trial, since I am unable to declare a belief that the error in permitting Mr. Klein to testify was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967).

Hoffman, J., joins in this dissenting opinion.

. In addition to the reasons set forth in Judge Jacobs’ opinion concerning the irrelevance of Mr. Klein’s testimony, it should be noted that a logical rebuttal to that testimony would be to call appellant’s, former counsel, who only assisted in appellant’s defense, to help explain the strategy of not raising the insanity defense at the previous trial. Not only would that force the divulgence of theretofore privileged communications, it would necessitate an uneconomic and potentially prejudicial inquiry into the facts of the rape trial. Theretofore, the jury in the instant case had only been advised that appellant had been incarcerated for committing a crime against the laws of this Commonwealth.

. In Blair, the Supreme Court stated that henceforth Pa. R. Crim. P. 1123 (a), 19 P.S. Appendix, will be strictly applied to require that all post-trial motions shall be submitted in writing. This ruling will abolish the common practice of submitting only boiler plate motions in writing while raising the more specific allegations of error orally at the subsequent hearing.

. In Benson v. Penn Central Transp. Co., 463 Pa. 37 (1975), the Supreme Court held that the courts of appeal in this Com*139monwealth may not consider issues not properly preserved for appeal despite the fact that the parties have not raised the question of waiver. In such a situation, this court should not consider issues not briefed or argued by the parties. Id. at 43, n. 8. That case is distinguishable from the instant case since the record herein does not affirmatively disclose a waiver.